Acree v. County Board of Education of Richmond County, GA and Combined School Board Cases Supplemental Brief for Intervenors and Appellants

    §>u^nw (uutrt of %  llnltvb States
October Term, 1971

Isr the

No. 70-187
P attie B lack  C otton, et al.,

v.
Petitioners,

S cotland N eck  Cit y  B oard oe E ducation , et al.

No. 70-188
P ecola A nnette  W eigh t , et al.,

Petitioners,
v.

Council  oe th e  City  oe E mpokia, et al.

SUPPLEMENTAL BRIEF IN SUPPORT OF PETITIONS FOR 
WRITS OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FOURTH CIRCUIT

J ack  Greenberg 
J ames M . N abrit, III 
N orman  J. Ch a c h k in  

10 Columbus Circle 
New York, New York 10019

J . L eV onne Chambers 
A dam S tein

237 West Trade Street 
Charlotte, North Carolina 28202

J ames R. W alker , J r.
501 West Third Street 
Weldon, North Carolina 27890

S am uel  S. M itch ell
126% East Hargett Street 
Raleigh, North Carolina 27601

Conrad O. P earson
2031/2 E. Chapel Hill Street 
Durham, North Carolina 27702

S. W. T ucker 
H en ry  L. M arsh , III

214 East Clay Street 
Richmond, Virginia 23219 

Attorneys for Petitioners



Isr the

Supreme (Emtri nf tiu United States
October Term, 1971

No. 70-187

P attie B lack  C ottok , et al.,

v.
Petitioners,

S cotland N eck  Cit y  B oard of E ducation , et al.

No. 70-188

P ecola A kkette  W eight , et al.,
Petitioners,

v.

Council  op the  City  op E mporia, et al.

SUPPLEMENTAL BRIEF IN SUPPORT OF PETITIONS FOR 
WRITS OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FOURTH CIRCUIT

Counsel for petitioners in each of these cases, presently 
pending upon petitions for writs of certiorari, file this joint 
Supplemental Brief pursuant to Rule 24(5) of this Court. 
Significant decisions of federal and state courts have been 
rendered since the filing of the petitions for writs of certio­
rari, each of which underscores the importance and desir­
ability of granting review in these cases.

The three pending matters referred to in footnote 10 at 
page 17 of the petition in No. 70-188 have been decided. 
In each instance, a rule contrary to that announced by the



2

United States Court of Appeals for the Fourth Circuit in 
these cases has been applied, to reach results opposite to 
those permitted by the decisions of which review is sought.

In Lee v. Macon County Board of Education, No. 30154 
(5th Cir. June 29, 1971) (reprinted as Appendix A, pp. 
la-21a), the Court of Appeals for the Fifth Circuit re­
quired that a newly established separate city school dis­
trict in Oxford, Alabama be treated, for purposes of relief 
in the pending school desegregation case, as part of the 
county system from which it was excised. The court ex­
plicitly eschewed deciding the matter on the basis of sub­
jective intent, but instead emphasized the effect upon de­
segregation of the entire area if the new system had to be 
treated as a separate entity:

The city cannot secede from the county where the 
effect—to say nothing of the purpose—of the secession 
has a substantial adverse effect on desegregation of 
the county school district.(^la)

Prior to the re-creation of a separate city school district 
in Oxford, white students from the county had crossed city 
boundaries to attend white schools in Oxford while black 
students from Oxford had attended the county training 
school outside the City limits (3a)—just as was true of 
Emporia and Greensville County (Petition in No. 70-188, 
p. 64a) and Scotland Neck and Halifax County (Petition 
in No. 70-187, p. 3). The Court of Appeals for the Fifth 
Circuit adopted a simple, clear and effective rule to ensure 
that the constitutional rights sought to be enforced by 
plaintiffs in school desegregation actions would not be 
frustrated by mid-litigation creation of new entities; at 
the same time, the Court of Appeals was solicitous of the 
State’s interest in maintaining its control over its political 
organization:



3

It is unnecessary to decide whether long established 
and racially untainted boundaries may be disregarded 
in dismantling school segregation. New boundaries can­
not be drawn where they would result in less desegre­
gation when formerly the lack of a boundary was in­
strumental in promoting segregation, Cf. Henry v. 
Clarksdale Municipal Separate School District, 5 Cir. 
1969, 409 F.2d 683, 688, n. 10 [cert, denied, 396 IT.S. 
940 (1969)]. (lla-12a) (emphasis in original)

Similarly, in Stout v. Jefferson County Board of Educa­
tion, Nos. 29886 and 30387 (5th Cir., July 16, 1971) (re­
printed as Appendix B, pp. 22a-24a), another Fifth Circuit 
panel, citing the Lee v. Macon County decision and this 
Court’s ruling in North Carolina State Board of Education 
v. Swann,------U.S. ------- , 28 L.Ed.2d 588, 589 (1971), di­
rected that newly formed school districts be ignored in the 
development and implementation of an adequate desegre­
gation plan on remand (24a) :

Likewise, where the formulation of splinter school 
districts, albeit validly created under state law, have 
the effect2 of thwarting the implementation of a uni­
tary school system, the district court may not, con­
sistent with the teachings of Swann v. Charlotte- 
Mecklenburg, supra, recognize their creation.3 * * * * 8

2 The process of desegregation shall not be swayed by inno­
cent action which results in prolonging an unconstitutional 
dual school system. The existence of unconstitutional discrim­
ination is not to be determined solely by intent. Cooper v. 
Aaron, 358 U.S. 1 (1958); Bush v. Orleans Parish School 
Board, 190 F. Supp. 861 (E.D. La. 1960), aff’d sub nom.,
City of New Orleans v. Bush, 333 U.S. 212 (1961) ; United
States v. Texas, ------- - F. Supp. -------, Part II (E.D. Tex. 1971),
aff’d as modified, United States v. Texas,------ F .2d ------- ■ (5th
Cir., No. 71-1061, July 9, 1971).

8 See Lee, et al. v. Macon County Board of Education,------
p  2d - —  (5th Cir. 1971) [No. 30154, June 29, 1971, Part 
II].



4

Jenkins v. Township of Morris School District, No. A-117 
(Sup. Ct. N.J., June 25, 1971) (reprinted as Appendix C 
pp. 25a-53a) dealt with the power of the State Commis­
sioner of Education, in carrying out the federal and state 
policies guaranteeing equal educational opportunity, to pro­
hibit the withdrawal by a township of its high school stu­
dents from the town educational system. The commissioner 
found that creation of a separate township high school sys­
tem and withdrawal of its students, largely white, from the 
town high school, whose student body was becoming increas­
ingly black, would have “adverse educational impact 
in the light of the growing racial imbalance between the 
entire student populations of the town and the township” 
but concluded that state law did not give him the power to 
cross district lines. The Supreme Court of New Jersey re­
jected that view and ordered the commissioner not only to 
prevent withdrawal, but to consider merger on a 12-grade 
basis, because of the effect which could be anticipated even 
if separate elementary systems only were maintained:

The projections leave little room for doubt as to the 
unfortunate future if suitable action is not taken in 
timely fashion. The commissioner explicitly referred 
to the growing racial imbalance between the town and 
the township and to its long range harmful effects on 
the school systems of both; and he recognized that un­
less forestalled there would be another urban-sub- 
urban split between black and white students. (50a) 
(emphasis supplied)

The New Jersey court emphasized (in connection with its 
discussion of the vote against consolidation in a nonbind­
ing township referendum) that intent was not the standard 
upon which judgment was to be based:

It has been suggested that it was motivated by consti­
tutionally impermissible racial opposition to merger



5

(cf. Lee v. Nyquist, supra, 318 F. Supp. 710; West Mor­
ris Regional Board of Education v. Sills, ——- N.J.------
(1971)), but we pass that by since the commissioner 
made no finding to that effect and his powers were, of 
course, in no wise dependent on any such finding. 
(53a) (emphasis supplied)

Petitioners submit that these rulings by another United 
States Court of Appeals and a State Supreme Court apply 
to the resolution of problems identical to those presented 
in these two cases, standards which are directly contradic­
tory to the standards announced by the Fourth Circuit. 
These new rulings, however, are completely consonant with 
the Eighth Circuit’s decision in the Burleson case, 432 F.2d 
1356 (8th Cir. 1970), aff’g per curiam 308 F. Supp. 352 
(E.D. Ark. 1970). The sharpened conflict of decision between 
the Fourth, Fifth and Eighth Circuits compels resolution 
by this Court.

Finally, petitioners noted (Petition in No. 70-188, p. 17) 
that the device sanctioned below would prove an increas­
ingly popular means of avoiding desegregation. The Fifth 
Circuit suggested the same thing in Lee v. Macon County, 
supra (if-a ) :

If this were legally permissible, there could be incorpo­
rated towns for every white neighborhood in every 
city.

This is borne out by the experience in Jefferson County, 
Alabama, where prior to the July 16 Stout decision, four 
new white school districts had been excised from the county. 
See the district court’s order on remand, reprinted as Ap­
pendix D, pp. 54a-55a.



6

W herefore, petition ers respectfully pray that w rits o f  
certiora ri be gran ted  and that the decisions below  be re­
versed .

Respectfully submitted,

J ack G reenberg

J am es M. N abrit, III
N orman  J. Ch a c h k in  

10 Columbus Circle 
New York, New York 10019

J. L eV onne Chambers

A dam  S tein

237 West Trade Street 
Charlotte, North Carolina 28202

J ames R. W alker , J r .
501 West Third Street 
Weldon, North Carolina 27890

S am uel  S. M itch ell

126% East Hargett Street 
Raleigh, North Carolina 27601

Conrad O. P earson

203% E. Chapel Hill Street 
Durham, North Carolina 27702

S. W. T ucker

H en ry  L. M arsh , III 
214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Petitioners



A P P E N D I C E S



Appendix A

IN THE

United States Court of Appeals
FOE THE FIFTH CIRCUIT

N o .  3 0 1 5 4

AN TH ON Y T. LEE, et ai.,
Plaintiffs,

UNITED STATES OF AM ERICA,
Plaintiff-Intervenor-Appellants,

N ATION AL EDUCATION ASSOCIATION, INC.,
Plaintiff-Intervenor,

versus

MACON COUNTY BOARD OF EDUCATION, et al.,

and

CALHOUN COUNTY SCHOOL SYSTEM,
Defendant-Appellee,

and

CITY OF OXFORD SCHOOL SYSTEM,
Defendant-Appellee.

Appeal from the United States District Court for the 
Middle District of Alabama

(June 29, 1971)

la



2a

Before WISDOM, COLEMAN, and SIMPSON, 
Circuit Judges.

Appendix A

WISDOM, Circuit Judge: This school desegrega­
tion case’ involves the student assignment provisions 
of the plan for desegregating the public schools in Cal­
houn County, Alabama. The United States, plaintiff-in- 
tervenor, appeals from that portion of the court’s order 
which would have the effect of leaving approximately 
45 percent of this small district’s Negro students in 
two virtually all-black schools; pairing alternatives 
would fully segregate both schools.2 We feel compelled 
to reverse the district court on this issue.

I.

Calhoun County, in northeastern Alabama, has 
a county school system serving rural areas and incor­
porated municipalities not having their own separate

>A three-judge court consisting of Circuit Judge Richard T. Rives 
and District Judge Frank M. Johnson, Jr. and H. H. Grooms 
was convened in 1964 to hear a constitutional challenge to 
an Alabama tuition grant law. See Lee et als v. Macon County 
Board of Education, et als, M.D. Ala., 1964, 231 F. Supp. 743. 
Ninety-nine local school systems, including Calhoun County’s 
were involved in the suit. See Lee v. Macon County Board 
of Education, 1967, 267 F. Supp. 458, aff’d sub nom. Wallace v. 
United States, 1967, 389 U. S. 215. The court continued to sit 
in the school desegregation cases. By its order of June 12, 
1970, the three-judge court transferred this case to the Northern 
District of Alabama under 28 U.S.C. § 1404(a). The matter 
giving rise to the June 12 order was not “ required” to be 
heard by a three-judge court. The appeal therefore properly 
lies to this court. 28 U.S.C. 1253, 1291. 

zAlthough the exact figures are not available to show the result 
of the district court’s order, approximately 730 black students 
will be in the two all-black schools.



3a

systems. There are five school systems in the county, 
the Calhoun County system and four city systems. In 
1969-70, the county board operated 24 schools, of which 
two were all-black and ten all-white. The system had 
about 11,322 white and 1573 black students (12 percent). 
Over 1000 of the blacks were in the two all-black 
schools.3 At issue here is the assignment of the stu­
dents in these two schools, the Calhoun County Train­
ing School and the Thankful School. Necessarily in­
volved in any desegregation plan are the formerly all- 
white schools in Oxford and Mechanicsville School, 
which is in a rural area. These schools lie closest to 
the all-black schools and present the most feasible op­
portunity for achieving desegregation by pairing.

Calhoun County Training School is located in all- 
black Hobson City, an incorporated town on the edge 
of Oxford City. Hobson City had a population of 770 
in 1960; today it is thought to have double that popula­
tion. County Training has served the black students 
not only of Hobson City but also of Oxford and other 
areas. Oxford Elementary School and Oxford High 
School, located on a common site, have served whites 
from Oxford and outlying areas. County Training and 
the Oxford schools are 1.6 miles apart by road.

Because of the school district’s rural character and 
the board’s previous maintenance of a segregated 
school system, the county has provided extensive

sThere were more Negroes in all-black schools last year than under 
the court’s order for this coming year. This is because some 
of the black students at Calhoun County Training last year 
were assigned to other schools under the board’s zoning plan.

Appendix A



4a

school bus transportation for students. Of the almost 
13,000 students in the county system 10,000 or 77,6 per­
cent were bussed to school in 1969-70. Approximately 
the same percentage of students were bussed to the 
Oxford schools as in the system as a whole. Some of 
these students were picked up within the city boun­
daries.

Past de jure segregation and residential patterns 
have shaped the context of this case. In 1899 Hobson 
City, which had been part of Oxford, was separately 
incorporated after the area’s black residents were 
gerrymandered out of Oxford, according to undisputed 
testimony in the record. Custom continued the residen­
tial segregation: Hobson City has remained all-black 
and in Oxford blacks (five percent of the population) 
live only in the section closest to the Oxford-Hobson 
border.

Oxford had an independent school system until 1932 
when its schools became part of the county system. 
During this past school year, while the county system 
was under court order to submit plans for county-wide 
desegregation, Oxford established a city school system 
under a City Board of Education. This board requested 
the Calhoun County Board to transfer control of the 
two Oxford schools to the new board. The takeover 
became effective July 1, 1970. The city school board 
has urged that its status as an independent entity is 
relevant to desegregation proposals.

The other all-black school, Thankful School, is to the 
north of County Training. Thankful served 278 black

Appendix A



5a

children in grades 1-6 in the 1969-70 school year. Thank­
ful is approximately one mile from Mechanicsville 
School, which has been serving 595 white children. Dur­
ing the 1969-70 school year, 510 of these were bussed 
to school. There are several other formerly all-white 
county elementary schools within a radius of about 
three miles of Thankful.

The issues in this case can best be considered by 
describing the plans submitted to the three-judge court 
by the various parties.

Under orders of the Court, the Calhoun County Board 
of Education, January 12, 1970, submitted a plan pro­
posing the closing of the two black schools,4 County 
Training and Thankful, and distributing the students 
from these schools among a number of the other coun­
ty schools.5 The Oxford schools would have received

Appendix A

*The county had previously closed several black schools and assigned the pupils 
to formerly white schools. This included the closing of grades 7-9 at Thank­
ful.

BThe projection for the effect of the county’s plan is as follows:
Projected
Enrollment Formerly W

School Capacity Gr. W N T or N Schools
Calhoun Co. Training 1020 (closed) N
Thankful 450 (closed) N
Blue Mountain 180 1-6 151 29 180 W
Eulation 390-420 1-6 400 20 420 W
Mechanicsville 720 1-6 590 130 720 w
Saks El. 870-1010 1-6 950 62 1012 w
Saks High 1200 7-12 980 126 1106 w
Oxford El. 810-1035 1-6 820 250 1070 w
Oxford High 1840-1860* 7-12 1375 220 1595 w
Welborn 1380 7-12 1200 200 1400 w
*“ On extended day school schedule”



6a

a number of the black students from County Training. 
The Oxford Board of Education, which asserts its sep­
arate identity with respect to sending its students to 
County Training, concurred in the plan. The school 
closing plan would result in an extended day-school 
schedule at Oxford High to house 1595 pupils in grades 
7 to 12. While the plan indicated a capacity of 1840-1860 
at Oxford High based upon the extended day sched­
uling, the Building Information Form for that school 
for the 1969-70 school year, stated that the maximum 
capacity was 1230. The plan would assign 1070 children 
to Oxford Elementary, with a regular capacity of 810, 
1035 including 7 portable and 2 temporary rooms.

The plaintiffs and the United States objected to clos­
ing Calhoun County and Thankful on the ground that 
it was racially motivated and would impose an uncon­
stitutional burden on the Negroes. The conclusion that 
the proposed closing was racially motivated was based 
on the fact that the facilities to be closed were physical­
ly adequate and that the county board’s justifications 
included the argument that whites would resist going 
to school in facilities formerly used by blacks. As an 
alternative, the plaintiffs and plaintiff-intervenors sug­
gested various pairing plans that would link County 
Training with the Oxford Elementary and High 
Schools, and link Thankful School with Mechanicsville 
School.6 On February 10, 1970, the court ordered the

Appendix A

6Several pairing proposals were put forward. For County Train­
ing and the Oxford schools, the plaintiffs at one point proposed, 
without attendance projections, the following division: Oxford 
Elementary 1-5; County Training 6-9, Oxford High 10-12. The



7a

system to show cause why this alternative should not 
be implemented, noting that “ [t]he school system’s 
plan appears to impose an unnecessary burden on the 
children of both races solely to avoid assigning white 
students to a formerly black school. The imposition 
of such a burden, when based on racial factors, vio­
lates the Fourteenth Amendment.”

Appendix A

According to the county superintendent of schools, 
the Thankful School, built in 1953, is “ in good condi­
tion,” has a “ good” site and its “landscaping is fine” . 
The Mechanicsville School, which would absorb more 
than 100 students if Thankful were closed, is located 
about one mile from Thankful. Its site is not as attrac­
tive as the one at Thankful. A portion of the Calhoun

plaintiffs later put forward the following pairing plan with 
projections:

Grades White Negro Total Capacity
Oxford Elementary 1-4 575 175 750 810
Oxford High 5-9 860 249 1109 1230
County Training 10-12 694 233 927 1020
Additionally, the United States proposed the following pairing 
suggestion for these

School Gr. W
Enrollment 

N T
County Training 1-4 575 175 750
Oxford El. 5-8 625 175 800
Oxford High 9-12 1050 150 1200
There is some dispute as to the capacity of County Training. 
County records, before the issue of pairing was raised, showed 
it as 1020; countering the pairing proposals the county urged 
that in fact the capacity was only 750.

As to the pairing of Thankful and Mechanicsville, no grade 
structure was proposed by the parties. The following figures 
were presented:

Mechanicsville
Capacity

720
Wh. N. Total

Thankful 360 610 260 870



8a

Appendix A

County Training School was built in 1945 and the re­
mainder in the 1950’s and 1960’s. It might cost a mil­
lion dollars to build a structure like Calhoun County 
Training at present. The system does not presently 
have available money for new construction. The court 
stated in the terminal order of June 12, 1970, that Coun­
ty Training had “ an excellent physical plant. . . .”

The County System gave three reasons for opposing 
the pairing. (1) Whites would flee from the public 
schools.7 (2) It would be expensive to convert the 
Training School to an elementary school. (3) Hobson 
City’s two percent license tax, covering teachers, 
would make it difficult to acquire suitable teachers. 
The Oxford system opposed the pairing for a number 
of reasons. (1) It agreed with the county board that 
whites would flee the public schools.8 (2) Hobson City 
is a separate town with its own government. (3) The

7The board stated: “These Defendants believe, and, if given an
opportunity to do so, will undertake to present oral testimony 
to show that if the Court adopts the proposed modification it 
will bring about extensive efforts to operate private school 
systems to accommodate any white students who might be 
assigned to the facilities now housing Calhoun County Training 
School. It would further be likely to bring about extensive re­
location of families in an effort to avoid such assignment. 
Adoption of the proposed alternative is certain t o . . . create 
avoidable new problems” .

sThe defendants strongly urge to the court that the closing of the 
Oxford Elementary School would not effect a racial balance 
and would do more toward resegregating the races according 
to color than ever before; that the parents of children living 
in Oxford would not send their young children unescorted into 
an all colored municipality; that private schools have been 
established and are being established in Oxford and Anniston 
and their enrollments for the next school year have already 
reached their capacity.



9a

Appendix A

Oxford System would not have elementary grades, 
thereby making it difficult to attract industry. (4) Pair­
ing would require bussing; some students live 3 or 4 
miles from County Training; the Oxford system did 
not intend to operate buses.

The county board then proposed a new plan that 
would keep both County Training and Thankful open 
for grades 1-6. Under this plan, student assignments 
would be based on geographic attendance zones. Since 
the zone boundaries followed historic neighborhood 
boundaries, their projected effect was to make County 
Training all-black and Thankful virtually so.9 Children 
in grades 7 to 12 formerly attending these schools 
would be distributed to the formerly white schools ac­
cording to the original county proposal.

After a hearing the district court entered a single 
order for the Calhoun County and Oxford systems ac­
cepting the county board’s plan except for an amend­
ment providing that the board operate County Training 
for grades 1 to 12 instead of 1 to 6. The order stated 
that “the evidence .. . reflects that [County Training]

sThe figures for the county board’s revised plan are as follows:
Enrollment

Gr. W N Capacity
Thankful 1-6 20 230 360
Mechanicsville 1-6 590 30 720
Blue Mountain 1-6 175 5 180
Saks El. 1-6 950 5 1012
Eulation 1-6 390 6 420
Oxford El. 1-7 960 95 1070
County Training 1-6 — 250 750
Children 7-12 grades in the Thankful zone would attend Saks 
and Wellborn High schools, and those in the County Training 
zone would attend Oxford High.



10a

is an excellent physical plant” . The effect of the order 
is to continue the school’s all-black character serving 
grades 1 to 12 and to deprive approximately 200 black 
students of the integration provided by the county 
plan.10 Under the plan, approximately 45 percent of 
the black students in the system will be assigned to 
Thankful and County Training, 29.4 percent to all-black 
County Training for their entire school careers.

II.

The first issue we discuss is whether Oxford’s seces­
sion from the Calhoun County school system requires 
that its schools be treated as an independent system. 
Oxford asserts its freedom to keep its pupils in schools 
within the city limits; the board had no objection to 
receiving black students in its schools from outside 
the city, as was proposed by the county in its original 
plan. But the city’s claim to be treated as a separate 
system has little merit. In its power as a court of equity 
overseeing within this Circuit the implementation of 
Brown v. Board of Education, 1955, 349 U.S. 294, 300, 
this Court must overcome “a variety of obstacles in 
making the transition to school systems operated in 
accordance with the constitutional principles set forth 
in (Brown I).” Brown II, supra.

Appendix A

soFigures are not available on the exact number of students that 
County Training would have under the plan. The Oxford board 
has submitted information showing that under the plan it 
would have only 157 Negro students out of an enrollment of 
2441 in grade 1-12.



11a

For purposes of relief, the district court treated the 
Calhoun County and Oxford City systems as one. We 
hold that the district court’s approach was fully within 
its judicial discretion and was the proper way to handle 
the problem raised by Oxford’s reinstitution of a sep­
arate city school system. The City’s action removing 
its schools from the county system took place while 
the city schools, through the county board, were under 
court order to establish a unitary school system. The 
city cannot secede from the county where the effect 
— to say nothing of the purpose — of the secession 
has a substantial adverse effect on desegregation of 
the county school district. If this were legally permis­
sible, there could be incorporated towns for every 
white neighborhood in every city. See Burleson v. Jack- 
son County Board of Election Commissioners, E.D. 
Ark. 1970, 308 F. Supp. 352 (proposed re-establishment 
of a discontinued district); Wright v. Greenville Coun­
ty Board, E.D. Va. 1970, 309 F. Supp. 671; United States 
v. Halifax County Board of Education, E.D.N.C., May 
23, 1970, C.A. No. 1128; Turner v. Warren County Board 
of Education, E.D.N.C., May 23, 1970, C.A. No.
1482-RE. Even historically separate school districts, 
where shown to be created as part of a state-wide dual 
school system or to have cooperated together in the 
maintenance of such a system, have been treated as 
one for purposes of desegregation. See Haney v. County 
Board of Education of Sevier County, 8 Cir. 1970, 410 
F.2d 920; United States v. Crockett County Board of 
Education, W.D, Term. May 15, 1967, C.A. 1663.

School district lines within a state are matters of 
political convenience. It is unnecessary to decide

Appendix A



12a

whether long-established and racially untainted boun­
daries may be disregarded in dismantling school seg­
regation. New boundaries cannot be drawn where they 
would result in less desegregation when formerly the 
lack of a boundary was instrumental in promoting seg­
regation. Cf. Henry v. Clarksdale Municipal Separate 
School District, 5 Cir. 1969, 409 F.2d 683, 688, n. 10.

Oxford in the past sent its black students to County 
Training. It cannot by drawing new boundaries dis­
sociate itself from that school or the county system. 
The Oxford schools, under the court-adopted plan, sup­
ported by the city, would serve an area beyond the 
city limit of Oxford. Thus, the schools of Oxford would 
continue to be an integral part of the county school 
system. The students and schools of Oxford, there­
fore, must be considered for the purpose of this case 
as a part of the Calhoun County school system.

III.

The second question is whether the plan approved 
by the district court is sufficient to satisfy the school 
board’s affirmative duty to disestablish the dual sys­
tem. A geographical zoning plan for student assign­
ments will sometimes satisfy this duty, depending on 
its practical effects and the feasible alternatives. But 
it will not satisfy the board’s duty to dismantle the 
dual system when it does not work. Henry v. Clarks­
dale Municipal Separate School District. To be satis­
factory, a zoning plan must effectively achieve deseg­
regation. When historic residential segregation creates 
housing patterns that militate against desegregation

Appendix A



13a

based on zoning, alternative methods must be ex­
plored, including pairing of schools. See Green v. Coun­
ty School Board, 1968, 391 U.S. 430, 442, n. 6. Swann 
v. Charlotte-Mecklenburg Board of Education, 1971, 

U.S. , 91 S.Ct. 1267, 28 L.Ed.2d 554.

An analysis of the plan adopted by the district court 
shows that it does not satisfy the board’s obligation 
to desegregate. While the plan does put some black 
students in formerly all white schools, it leaves over 
45 percent of the district’s Negro students in all-black 
or virtually all-black schools. This continued segrega­
tion results from extensive residential segregation and 
boundary drawing to retain “the comfortable security 
of the old, established discriminatory pattern.” Mon­
roe v. Board of Commissioners of Jackson, 1968, 391 
U.S. 20. For instance, the zone boundaries adopt the 
dividing line between Oxford and Hobson, a boundary 
tainted by racial gerrymandering.

Appendix A

The appellees contend with respect to County Train­
ing that Hobson takes pride in its school and wants 
it to continue as it has been. Although this seems a 
misinterpretation of the testimony of Mayor Striplin 
of Hobson," even if it were accurate it would not sup-

"  Mayor Striplin seemed from the record to be saying only that if 
the schools were not to be paired the black community would 
prefer to have the facility used by 12 grades than have it 
partially abandoned. But there was other language that would 
support an interpretation that the community desired to have 
a twelve grade all-black school. In a letter dated January 7, 
1970, addressed to the Director of the Health, Education, and 
Welfare Department, Mayor Striplin wrote, in part:

“ it would bring hardship to this 1,500 populated com­
munity to be without a school. We are not trying to



14a

port a defective plan. The district court should require 
the School Board forthwith to constitute and implement 
a student assignment plan that complies with the prin­
ciples established in Swann v. Charlotte-Mecklenburg 
Board of Education.

Appendix A

IV.

The county board’s original plan proposed to close 
the formerly black schools and disperse the students 
among formerly white schools. Although this plan 
would bring about student body desegregation, plain­
tiffs objected that the plan was unconstitutional be­
cause the closing of the two schools was racially mo­
tivated and placed an unequal burden on Negro stu­
dents.

Closing schools for racial reasons would be unconsti­
tutional. The equal protection clause of the fourteenth 
amendment prevents any invidious discrimination on 
the basis of race. Yick Wo v. Hopkins, 1886, 118 U.S. 
356. A governmental unit bears a “very heavy burden 
of justification” to support any use of racial distinc­
tions. Loving v. Virginia, 1967, 388 U.S. 1, 9. Under 
general equal protection doctrine, therefore, it would 
be impermissible for the school board to close formerly 
black schools for racial reasons. More particularly, 
such action is prohibited by the school desegregation

buck the guide lines, we are only asking you to spare 
our school in some way. fl We have Whites living all 
around us. Some in walking distance, some on the bus 
lines, can they be brought in? They are welcome. . . . ”



15a

Appendix A

cases. Brown II, supra, calling for “a racially non- 
discriminatory school system,” and its progeny re­
quire not only that past discriminatory practices be 
overcome by affirmative actions but also that new 
forms of discrimination not be set up in their place. 
Closing formerly black school facilities for racial rea­
sons would be such a prohibited form of discrimina­
tion. “Such a plan places the burden of desegregation 
upon one racial group.” ’2 Brice v. Landis, N D. Cal. 
1969, 314 F. Supp. 947. See Quarles v. Oxford Municipal 
Separate School District, N.D. Miss. January 7, 1970, 
C.A. W.C. 6962-K.

We are frankly told in the County Board’s brief that 
without this action it is apprehended that white stu­
dents will flee the school system altogether. “But it 
should go without saying that the vitality of these con­
stitutional principles canot be allowed to yield simply 
because of disagreement with them.” Brown II, at 300. 
See Monroe v. Board of Commissioners of Jackson, 
at 459.

lain Brice v. Landis, N.D. Cal.. August 8, 1969, No. 51805, the court 
discussed the discriminatory closing of formerly black schools: 

“The minority children are placed in the position of 
what may be described as second-class pupils. White 
pupils, realizing that they are permitted to attend 
their own neighborhood schools as usual, may come to 
regard themselves as ‘natives’ and to resent the negro 
children bussed into the white schools every school 
day as intruding ‘foreigners.’ It is in this respect that 
such a plan, when not reasonably required under the 
circumstances, becomes substantially discriminating 
in itself. This undesirable result will not be nearly 
so likely if the white children themselves realize that 
some of their number are also required to play the 
same role at negro neighborhood schools.”



16a

In Gordon v. Jefferson Davis Parish School Board,
5 Cir. July , 1971, F,2d [No. 30,075], this 
Court, relying on Quarles, Brice, and Haney v. County 
Board of Education of Sevier County, 8 Cir. 1970, 429 
F.2d 364, recently remanded the case to the district 
court with directions that the court “promptly conduct 
hearings, and thereon makes findings and conclusions 
as to whether or not the closing [of two schools] was 
in fact racially motivated” . Here, however, it is clear 
from the record and briefs that the primary reason 
for closing the schools was the county board’s conclu­
sion that the use of the black facilities would lead 
whites to withdraw from the public system. And there 
is little evidence of any legitimate reasons for the clos­
ings. Although arguing below that the black facilities 
were inferior, appellees asserted on appeal that the 
facilities of County Training “ are excellent.” Also, the 
district court found County Training to have an “ ex­
cellent physical plant” in assigning twelve grades of 
black students there. Thus the action is not supported 
by the inferiority of the physical facilities. Moreover, 
the county’s plan would have required an extended 
day at Oxford High because of the crowding caused 
by closing County Training. On the record before us, 
the county’s original proposal is unacceptable.

V.

In contrast to the defects of the plan adopted by the 
court and the county’s original plan to close County 
Training and Thankful Schools, the school system 
seems suitable for pairing several schools to achieve 
desegregation. County Training and the Oxford Ele­

Appendix A



17a

mentary and High School complex are only 1.6 miles 
apart by road. Thankful and Mechanicsville are only 
one mile apart. These figures compare favorably with 
distances between elementary schools this court has 
ordered paired in the past. See, e.g., Bradley v. Public 
Instruction of Pinellas County, 5 Cir. July 28, 1970 (ele­
mentary schools one and two miles apart paired).

In addition, a great number of the students attend­
ing these schools in the past have been transported 
to school by the county school bus system. In its orig­
inal proposal the county planned to provide the neces­
sary transportation for the black students to be dis­
persed to the formerly white schools, demonstrating 
the ability of the county to use its transportation sys­
tem to accomplish desegregation. The bussing neces­
sary to handle the pairing might involve a moderate 
increase over that provided by the County in the past. 
Where transportation facilities exist, a requirement of 
a moderate increase in transportation is a proper tool 
in the elimination of the dual system. Tillman, Jr. v. 
Volusia County, 5 Cir. July 21, 1970, F.2d [No.

, July 21, 1970],

The appellees overstate the case as to the alleged 
difficulties in pairing. The first assertion is that physi­
cal barriers exist between County Training and the 
Oxford School complex, i.e. railroad tracks and high­
ways. But a view of the maps of Oxford and Hobson 
show that these barriers not only separate the two 
schools but also separate a large number of white stu­
dents from the Oxford school complex. The result is 
that some white students live on the County Training

Appendix A



18a

side of the tracks and highways, and therefore crossed 
these to attend the Oxford schools. Barriers that in 
the past have yielded to segregation should not now 
prevent pairing to achieve integration. Also, the dif­
ficulty of physical barriers is decreased by the avail­
ability of transportation.

The appellees also assert that the road that school 
busses must use in traveling to County Training is un­
safe for such buses. Considering that this road has 
been used by school'busses going to County Training 
in the past in order to maintain segregation, such dif­
ficulties cannot now be found insurmountable.

The City of Oxford argues that pairing cannot pro­
ceed on the assumption that pupils will be transported. 
In the past it has been the practice of the county school 
system not to transport children living within a sep­
arate municipal school district to schools run by the 
municipality. But application of the rule to the situa­
tion involved here is predicated on the idea that Oxford 
has become a separate school district. Since we have 
concluded that for purposes of this case the Oxford 
schools should not be considered a separate entity, the 
county must continue to treat Oxford as an integral 
part of the county system for purposes of providing 
school bus transportation. Last school year the county 
did provide transportation to Oxford Elementary and 
High Schools for some students living within the Oxford 
city limits. The county board must now reconstitute 
its transportation system to provide transportation 
necessary for the pairing ordered by this decision. 
Singleton v. Jackson Municipal Separate School Dis­

Appendix A



Appendix A

trict, 5 Cir. 1969, 419 F.2d 1211, 1217, n. 1 (en banc), 
rev ’d other grounds, sub nom. Carter v. West Feliciana 
Parish School Board, 1970, 396 U.S. 290, 90 S.Ct. 24 
L.Ed.2d 477.

The appellees also argue that none of the pairing 
proposals suggested by the plaintiffs are practicable 
because the capacity of County Training is too small 
to accommodate the number of pupils that would be 
assigned to it under them. We note that until the ques­
tion of pairing arose the official records of the county 
system showed County Training’s capacity to be 1020, 
as opposed to the 750 now said to be its capacity. Even 
if the capacity is 750, pairing is feasible. See the pro­
posal by the United States, note 6 supra.

We do not prescribe the grade structure to be used 
in pairing these two sets of schools. The county system 
(including the Oxford City board), after consulting 
with the plaintiffs and the plaintiff-intervenors, should 
assign grades to these schools for the 1970-71 school 
year, using each school to the same fraction of its ca­
pacity as far as practical.

The judgment of the district court as it relates to 
student assignment is vacated and the cause is 
remanded with directions that the district court re­
quire the School Board forwith to institute and imple­
ment a student assignment plan that complies with 
the principles established in Swann v. Charlotte-Meck- 
lenburg Board of Education and reflects any changes 
in conditions relating to school desegregation in Cal­
houn County since the Court’s decree of June 12, 1970.



20a

The district court shall require the School Board to 
file semi-annual reports during the school year simi­
lar to those required in United States v. Hinds County 
School Board, 5 Cir. 1970, 433 F.2d 611, 618-19J3

VACATED AND REMANDED WITH DIRECTIONS.
The Clerk is directed to issue the mandate forthwith.

COLEMAN, Circuit Judge, concurring in part and 
dissenting in part.

I regret that I cannot fully agree with the majority 
opinion in this case. Of course, I agree that all reason­
able means must be exercised to dismantle dual school 
systems and to establish unitary ones. My disagree­
ments, now and in the past, have been founded upon 
m y opposition to unrealistic plans, doomed to failure 
from the beginning, whereas a discretionary approach 
by the District Judge would more likely have been 
crowned with better results, rather than destroying 
public schools, so badly needed by white and black 
alike.

Admittedly the problem in Calhoun County, Ala­
bama, is not acute. There appears to be no real ob­
stacle to the speedy accomplishment of a unitary 
school system in this area.

Appendix A

i3This decision is based on a state record, in part because this Court 
(en banc) determined to withhold all decisions in school 
desegregation cases pending the Supreme Court’s issuance of 
its judgment in Swann v. Charlotte-Mecklenburg.



21a

I agree that school systems in the process of deseg­
regation may not escape their obligations by changing 
their operational status, as Oxford has attempted to 
do.

From such knowledge of history as I have I am not 
convinced, that the incorporation of Hobson City in 
1899, when Plessy v. Ferguson was on the books, had 
any racial connotations, unless it may have been that 
the black citizens desired a municipality of their own, 
as, for instance, Mound Bayou, Mississippi.

For the reasons stated in my dissenting opinion in 
Marcus Gordon v. Jefferson Davis School Board [No.
30,075, slip opinion dated --------------------------------- , 1971]
____F.2d_____, I disagree with Part IV of the majority
opinion. As I said there, race is, of necessity, at the 
bottom of all school desegregation orders; otherwise 
there would be no Fourteenth Amendment jurisdiction. 
I shall not repeat here that which I have already put 
of record in Gordon. I simply adhere to the point.

I shall only add a reference to what the Supreme 
Court said in Swann v. Charlotte-Mecklenburg Board 
of Education:

“Just as the race of the students must be 
considered in determining whether a violation 
has occurred, so also must race be considered 
in formulating a remedy” . [39 U.S.L.W. at 
4449],

Appendix A



Appendix B 

IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o .  2 9 8  8 6 *  
N o .  3 0 3 8 7

LINDA STOUT, by her father and 
next friend, BLEVIN STOUT,

Plaintiff-Appellant, 
UNITED STATES OF AM ERICA,

Plaintiff-Intervener,
versus

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL.,
Defendants-Appelleess,

BOARD OF EDUCATION FOR THE 
CITY OF PLEASANT GROVE,

Defendant-Intervenor.

Appeals from the United States District Court for the 
Northern District of Alabama

(July 16, 1971)

Before THORNBERRY, CLARK and INGRAHAM, 
Circuit Judges.

♦No. 29886 is included in this order because of the inter-relation of 
the issues raised therein and in order that the district court 
on remand will have the opportunity to assure compliance 
with the uniform provisions relating to faculty and other staff

22a



23a

BY THE COURT: The order of the district court 
under review is vacated and the cause is remanded 
with direction that the district court require the school 
board® forthwith to implement a student assignment 
plan for the 1971-72 school term which complies with 
the principles established in Swann v. Charlotte-Meck-
lenburg Board, of Education, ____  U.S. ...... 91 S.Ct.
1267, 28 L.Ed.2d 554 (1971), insofar as it relates to the 
issues in this case, and which encompasses the entire 
Jefferson County School District as it stood at the time 
of the original filing of this desegregation suit.

In North Carolina State Board of Education v.
Swann, ____  U.S. ____ , 28 L.Ed. 2d 588, 589 (1971), the
Supreme Court said:

“ . . .  [I] f a state-imposed l i m i t a t i o n  on 
a school authority’s discretion operates to in­
hibit or obstruct the operation of a unitary 
school system or impede the disestablishing of 
a dual school system, it must fall; state policy 
must give way when it operates to hinder vin­
dication of federal constitutional guarantees.”

Likewise, where the formulation of splinter school dis­
tricts, albeit validly created under state law, have the

Appendix B

in Singleton v. Jackson Municipal Separate School District, 
419 F.2d 1211; Id. 425 F.2d 1211.

iThe district court shall include within its order a direction to 
any school boards created since the filing of the original action 
in this cause to submit to the plan to be approved by the dis­
trict court.



24a

Appendix B

effect2 of thwarting the implementation of a unitary 
school system, the district court may not, consistent 
with the teachings of Swann v. Charlotte-Mecklenburg, 
supra, recognize their creation.3

The district court is also directed to implement fully 
the uniform provisions of our decision in Singleton v. 
Jackson Municipal Separate School District, 419 F.2d 
1211; Id. 425 F.2d 1211, insofar as said uniform provi­
sions relate to desegregation of faculty and other staff, 
majority to minority transfer policy, transportation, 
school construction and site selection, and attendance 
outside system of residence. See also Carter v. West 
Feliciana Parish School Board, 432 F.2d 875 (5th Cir., 
1970).

The district court shall require the school board to 
file semi-annual reports during the school year simi­
lar to those required in United States v. Hinds County 
School Board, 433 F.2d 611, 618-19 (5th Cir., 1970).

The mandate shall issue forthwith.

VACATED and REMANDED with directions.

2The process of desegregation shall not be swayed by innocent ac­
tion which results in prolonging an unconstitutional dual school 
system. The existence of unconstitutional discrimination is not 
to be determined solely by intent. Cooper v. Aaron, 358 U.S. 
1 (1958); Bush v. Orleans Parish School Board, 190 F.Supp. 
861 (E.D. La., 1960); a ffd  sub nom, City of New Orleans v.
Bush, 333 U.S. 212 (1961); United States v. Texas,_____ F.Supp.

______ , Part II (E.D.Tex., 1971); aff’d as modified, United States
v. Texas, ____ F.2d ______  (5th Cir., No. 71-1061, July 9,
1971).

aSee, Lee, et al., v. Macon County Board of Education, _____ _ F.2d
_____  (5th Cir., 1971) [No. 30154, June 29, 1971, Part II],

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.



25a

SUPREME COURT OF NEW JERSEY 
No. A-117—September Term 1970

Appendix C

B eatrice M. J e n k in s , et al.,

v.
Petitioners-Appellants,

T he  T o w n sh ip  op M orris S chool D istrict 
and B oard o p  E ducation,

Defendant-Respondent,
and

T he  T own  of M orristown S chool and 
B oard o f  E ducation,

Defendant and 
Cross-Petitioner-Appellant,

and

T h e  B orough of M orris P lains B oard of E ducation,

Defendant.

Argued April 6 and 26, 1971. Decided June 25, 1971.
On certification to the Appellate Division.
Mr. Prank F. Harding and Mr. Stephen B. Wiley argued 

the cause for the appellants (Messrs. MacKenzie & Hard­
ing, attorneys for the appellants Beatrice M. Jenkins, et al.; 
Mr. Stephen B. Wiley, attorney for the appellant Morris­
town Board of Education; Mr. Donald M. Malehorn and 
Mr. Frank F. Harding, on the brief).



26a

Mr. Victor H. Miles argued the cause for the respondent.
Mr. Paul Bangiola argued the cause for the defendant 

Borough of Morris Plains Board of Education.
The op in ion  o f  the Court w as delivered b y  J acobs, J.
The appellants sought to have the Commissioner of 

Education take suitable steps towards preventing Morris 
Township from withdrawing its students from Morristown 
High School and towards effectuating a merger of the 
Morris Township and Morristown school systems. The 
Commissioner was of the opinion that, even though such 
steps were highly desirable from an educational standpoint 
and to avoid racial imbalance, he lacked legal authority to 
take them and accordingly he dismissed the individual ap­
pellants’ petition and the appellant Morristown’s cross­
petition. The appellants filed notice of appeal to the Ap­
pellate Division and we certified before argument there. 
58 N.J. 1 (1971).

Prior to 1865 Morristown and Morris Township were a 
single municipal unit. In that year Morristown received 
permission to incorporate as a separate entity and arbitrary 
boundary lines were drawn between the Township (Morris) 
and the Town (Morristown). Despite their official separa­
tion, the Town and the Township have remained so inter­
related that they may realistically be viewed as a single 
community, probably a unique one in our State. The Town 
is a compact urban municipality of 2.9 square miles and is 
completely encircled by the Township of 15.7 square miles. 
The boundary lines between the Town and the Township 
do not adhere to any natural or physical features but cut 
indiscriminately across streets and neighborhoods. All of 
the main roads radiate into the Township from the Green 
located in the center of the Town and it is impracticable to

Appendix C



27a

go from most Township areas to other Township areas 
without going through the Town itself.

The Town is the social and commercial center of the 
community whereas the Township is primarily residential 
with considerable undeveloped area for further residential 
development. The Town has many retail stores and other 
commercial establishments surrounding its Green while the 
Township has only a few retail outlets located on its main 
roads. The Township has no business center or so-called 
“downtown” area but the Town’s substantial shopping cen­
ter serves in that aspect for both the Township and the 
Town. Most of the associations, clubs, social services and 
welfare organizations serving the residents of both the 
Town and the Township are located within the Town and, 
as members of the aforementioned organizations, the Town 
and Township residents are routinely together at both work 
and play. The Morristown Green is a common meeting 
place for young people from both the Town and the Town­
ship; day care centers and park and playground facilities 
in the Town are used by the residents of both the Town and 
the Township; and little leagues and the like generally in­
volve Town and Township teammates who play on both 
Town and Township fields.

There is also considerable interdependency in municipal 
public services. Thus the Town’s Water Department sup­
plies water to most of the Township residents; sewer ser­
vice is rendered by the Town to some parts of the Town­
ship; Town and Township Fire and Police Departments 
regularly assist each other; and the Town and Township 
jointly operate the Public Library located within the Town. 
There are socio-economic and population differences be­
tween the Town and the Township but despite these dif­
ferences the record before us clearly establishes that, as set

Appendix C



28a

forth, in the Candeub report, the Town and Township “are 
integrally and uniquely related to one another” and “con­
stitute a single community.” The Candeub report was pre­
pared for the Town by an established consulting community 
planning firm. The hearing examiner, whose findings were 
adopted and incorporated by the Commissioner of Educa­
tion in his decision, found that the Morristown-Morris com­
munity was essentially as described in the Candeub report; 
he noted further that the Township did “not dispute the 
interrelatedness between itself and the Town” though it 
contended that statutorily and technically the Town and 
Township are “separate entities for school purposes.” 

The Township has a population of about 20,000 including 
less than 5% blacks. The Town has a population of almost 
18,000 including about 25% blacks. There was testimony 
that within this decade the Town’s population of blacks 
would probably increase to between 44% and 48%. Because 
of employment considerations and other economic factors, 
black families generally locate in the Town rather than the 
Township. Town sales of single family homes average be­
tween $22,000 and $24,000 whereas the homes in the Town­
ship average between $40,000 and $60,000. Though the 
Town’s school population is leveling off, its black school 
population is increasing steadily. As of 1969 when the hear­
ings wTere held below, the Town’s school enrollment was 
2,823 and is not expected to exceed 3,200 by 1980 though 
its black school population is expected to increase from 
39% to over 65% by that time. Its elementary schools are 
43% black but are expected to be 70% black by 1980. On 
the other hand, the Township’s public school enrollment of 
4,172 will probably reach 6,700 by 1980 and is expected to 
remain overwhelmingly white. About 5% of the Township 
students are black and there was testimony that this per­
centage is likely to decrease rather than increase by 1980.

Appendix C



29a

Most of the Town and Township schools are located near 
the Town boundary line and the hearing examiner made 
pointed references and findings to their gross disparities 
in racial composition. Thus he noted that the Town’s 
Thomas Jefferson School with its 48% black enrollment 
was “very close to the Township’s Woodland School with 
zero percent black enrollment” ; that “geographic proximity” 
also invited attention to George Washington School (Town, 
45%) and Normandy Park School (Township, 9%) and to 
Lafayette Junior High School (Town, 42%) and Alfred 
Vail School (Township, 10%); and he pointed out that the 
Alexander Hamilton School (Town, 35%) was “equidistant” 
between Sussex Avenue School (Township, 5%) and Hill- 
crest School (Township, less than 1%).

So far as Morristown High School is concerned, the 
present black student population is about 14%. But its 
student body now includes residents of Morris Township 
and the neighboring municipalities, Borough of Morris 
Plains and Harding Township. The projections introduced 
by the Town indicate that if the Morris Township students 
are withdrawn, the percentage of blacks in Morristown 
High School will double immediately, and will probably 
reach 35% by 1980; they indicate further that if the Morris 
Plains and Harding students are also withdrawn the black 
enrollment at Morristown High School will probably reach 
56% by 1980. The hearing examiner accepted the Town’s 
projections since they appeared to him “essentially reason­
able” and no “real projections in contradiction” had been 
offered.

For over a hundred years the Town and Township have 
had a sending-receiving relationship under which the Town­
ship sends Township students to Morristown High School. 
There was a short interruption which continued only

Appendix C



30a

through 1958 and 1959. As of 1962 the Town and Township 
executed a formal 10-year sending-receiving contract and 
the Township has since been regularly sending its 10th, 
11th, and 12th grade students to Morristown High School. 
The contract contains a provision to the effect that after the 
ten-year term the parties shall be free to make whatever 
arrangements they mutually agree upon “subject to the 
provisions of law and the approval of the Commissioner of 
Education.” Incidentally, the residents of Morris Plains 
and Harding now at Morristown High School include grade 
9 through 12 students who attend under designation with­
out formal contract.*

Morristown High School is an excellent educational in­
stitution and offers diversified and comprehensive courses 
of instruction including seven full vocational programs 
and an equal number of advanced college placement courses 
in English, social studies, science and language. It has a 
total of 150 courses in contrast to the State median of 80-89 
courses. It operates with an eight-period day, staggering 
arrival and departure times. It accommodates 1950 students 
and by using a nine-period day can accommodate 2450 stu­
dents ; it is anticipated that the High School population will 
not reach this latter figure until 1974. If the Township is 
permitted to withdraw its students, Morristown High School 
will have remaining about 1300 students as of 1974 and if,

# Harding Township was originally a party to the proceedings 
but was permitted to withdraw by consent. Before the Commis­
sioner, the Borough of Morris Plains sought a regionalization of 
schools at the high school level and joined in the request to prevent 
the withdrawal of Morris Township students from Morristown 
High School. The Borough took no appeal from the Commissioner’s 
determination and before us its counsel simply filed a statement in 
lieu of brief which joined in the relief sought by the appellants 
“except that his demands for regionalization would be that of a 
limited public regional high school for grades nine through twelve.”

Appendix C



31a

in addition, Morris Plains and Harding are permitted to 
change their designation, the High School will then have 
only about 800 students. The hearing examiner found that 
“ to be left with only Harding and Morris Plains—and 
especially to be left alone—would impose the following 
disadvantages:

“1. By dint of reduced size alone Morristown High 
School could not continue to provide the same scope 
and variety of courses.

2. Withdrawal of Township students would mean with­
drawal of a significant number of educationally 
highly-motivated, capable students, and this is 
likely to have an adverse affect upon the perform­
ance and motivation of the remaining Town stu­
dents.

3. The remaining students would be, as a group, from 
lower socio-economic backgrounds and be less 
oriented toward academic achievement, with the 
result that the program structure will have to be 
drastically re-oriented.

4. The percentage of black students in the High School 
will be approximately as stated above: with Hard­
ing and Morris Plains, 27% in 1974 and 35% in 
1980; without Harding and Morris Plains, 44% in 
1974 and 56% in 1980.

5. Morristown High School will not be able to main­
tain its place in the scale of excellence in terms of 
breadth and quality of program.

6. It is probable that, as a consequence, it will have 
more difficulty in keeping and attracting the same 
high quality faculty.

Appendix C



32a

7. With the change in program and reputation and 
the loss in tuition revenue, it is possible that the 
Town will not be as able or as willing to support 
financially its school system as it currently is.

8. The Township students will be denied the privilege 
of an integrated education.

9. The sudden alteration in the racial composition of 
the High School might aggravate the tendency of 
potential white buyers to avoid purchasing houses 
in Morristown.”

On the issue of total K-12 merger between the Town and 
Township, the examiner received considerable testimony 
during the hearings before him. In the main it most per­
suasively supported the high educational desirability and 
economic feasibility of such a merger. The examiner, after 
pointing to the sharp contrast between the Town’s K-12 
black enrollment of 39% (projected to over 65% by 1980) 
and the Township’s white enrollment of 95%, stressed that 
“ the close proximity of the Town and Township elementary 
schools makes the disparity easily visible to and easily felt 
by the students of the two districts” and that “the commu­
nity with which Morristown residents, including students, 
identify extends beyond the bounds of the Town and en­
compasses the Township.” He firmly set forth his view 
that if there is a failure to merge “the black student popu­
lation of Morristown—particularly at the elementary school 
level—will suffer the same harmful effects that the Commis­
sioner of Education has worked so hard to eliminate within 
single school districts throughout the State.” And though 
he did not deal with it in explicit terms there is little doubt 
that he subscribed to the Town’s testimony as to the ad­
vantages of total merger, set forth as follows in the report

Appendix C



33a

submitted to the Town by the Engelhardt educational con­
sulting firm and introduced in evidence at the hearings 
below:

“ The advantages to both Morristown and to Morris 
Township of a K-12 merger may be summarized this 
way:
1. Establishment of a racial balance which represents 

the racial composition of the community. Bi-racial 
experience will be available in the early grades 
where it has important benefits for both white and 
Negro students in terms of interracial attitudes 
and preferences and at the later years where it 
appears to have important benefits to members of 
minority groups.

2. Representation of the socio-economic spectrum of 
the community at all levels of schooling.

3. Equal educational opportunity available to all stu­
dents without regard to background, race, or resi­
dence.

4. Avoidance of invidious comparison between the 
Morristown High School and a Township school, a 
comparison ultimately based on race.

5. Avoidance of the deterioration and pejoration of 
Morristown High School because of racial con­
centration, loss of reputation, curtailment of pro­
gram, and ultimate reduction in per-pupil expendi­
ture.

6. Development of a district which represents a 
natural community and avoidance of the creation 
and perpetuation of racial imbalance.

Appendix C



34a

7. Development of a climate of education which, repre­
sents the society in which the students live.

8. Development of a school district and a high school 
large enough to allow the maximum return on the 
funds invested and to permit a program broad 
enough to meet a wide range of pupil needs.

9. Development of an educational pattern related to 
and serving the single Morristown-Township com­
munity.

10. Reduction in the number of school districts in the 
area from four to three.

11. Development of greater vertical coordination of 
program and greater flexibility in facilities, cur­
riculum, and organization.”

In January 1968 the Township Board of Education con­
ducted a non-binding referendum among the Morris Town­
ship residents. The voters were asked whether they favored 
a separate K-12 school system for Morris Township or a 
K-12 merger with Morristown. The vote was 2164 to 1899 
in favor of a separate K-12 system. The examiner found 
that prior to the vote six of the eight members of the Town­
ship Board of Education had been on record in favor of some 
sort of merger; that Board members agreed beforehand to 
be bound by the results of the referendum; that since the 
referendum the Board has conducted itself as if the decision 
were irrevocably made to have a separate school system 
including a separate high school; and that the Board de­
clined to participate “in a study of regionalization with the 
other school districts upon the invitation of the County

Appendix C



35a

Superintendent of Schools in accordance with the Com­
missioner’s urgent recommendation.”

Following the referendum the Township Board of Educa­
tion set upon a program for the construction of a separate 
Township high school for Township residents in lieu of 
the Morristown High School. A bond referendum in con­
nection with the proposed construction was scheduled but 
was restrained, originally by the Commissioner of Educa­
tion and later by this Court. In this proceeding the Town­
ship Board has pressed for vacation of the restraint and 
has apparently concentrated all of its efforts towards the 
building of a new high school in pursuance of the vote at 
the non-binding referendum. In his decision the Commis­
sioner was highly critical of that referendum and the 
Board’s conduct in connection therewith. Citing Hackensack 
Bd. of Education v. Hackensack, 63 N.J. Super. 560 (App. 
Div. 1960), and Botkin v. Westwood, 52 N.J. Super. 416 
(App.Div.), appeal dismissed, 28 N.J. 218 (1958), he de­
scribed the non-binding referendum as “illegal and an im­
proper abdication of the Township Board’s responsibility 
to perform its function.” And he flatly condemned the pre­
vote “pledge of all but one” of the Board members to abide 
by the results of the non-binding referendum, noting that 
it “improperly delegates the responsibility for ultimate 
decision.”

The Commissioner was also critical of the Township 
Board’s refusal, since the vote, to consider any alternative 
to a new high school and its failure to participate in the 
regionalization study which he had urgently recommended. 
He expressed his particular concern with “the adverse edu­
cational impact of the proposed withdrawal of the Morris 
Township students from Morristown High School” and 
with “the long-range harmful effects to the two school sys-

Appendix C



36a

terns” in the light of “the growing racial imbalance between 
the entire student populations of the Town and the Town­
ship.” And he further expressed his desire to act, within 
his powers, “so as to forestall the development of what may 
be another urban-suburban split between black and white 
students.” But having pointedly made that clear, he then 
proceeded to determine that he had no power, either to pro­
hibit the withdrawal of Township students from Morris­
town High School, or to direct any steps on the part of the 
respective Boards towards merger of their school systems, 
or to grant any other relief towards avoidance of the bane­
ful effects he so soundly envisions. Accordingly he lifted 
the restraint he had originally granted and dismissed the 
petition and cross-petition which had been duly filed by the 
appellants now before us.

The Commissioner’s flat disavowal of power despite the 
compelling circumstances may be sharply contrasted with 
the sweep of our pertinent constitutional and statutory 
provisions and the tenor of our earlier judicial holdings. 
See N.J. Const., art. 1, para. 5; art. 8, sec. 4, para. 1 (1947) ; 
N.J.S.A. 18A :4-23, 24; N.J.S.A. 18A:6-9; Bd. of Ed. of 
Elizabeth v. City Coun. of Elizabeth, 55 N.J. 501 (1970); 
Bd. of Ed., E. Brunswick Tp. v. Tp. Council, E. Brunswick, 
48 N.J. 94 (1966); Booker v. Board of Education, Plain- 
field, 45 N.J. 161 (1965); Morean v. Bd. of Ed. of Mont­
clair, 42 N.J. 237 (1964); see also In re Masiello, 25 N.J. 
590 (1958); Laba v. Newark Board of Education, 23 N.J. 
364 (1957); Schultz v. Bd. of Ed. of Teaneck, 86 N.J. Super. 
29 (App.Div. 1964), affd, 45 N.J. 2 (1965).

Our Constitution contains an explicit mandate for legis­
lative “maintenance and support of a thorough and effi­
cient system of free public schools.” Art. 8, sec. 4, para. 1. 
In fulfillment of the mandate the Legislature has adopted

Appendix C



37a

comprehensive enactments which, inter alia, delegate the 
“general supervision and control of public education” in 
the State to the State Board of Education in the Depart­
ment of Education. N.J.8.A. 18A:4-10. As the chief ex­
ecutive and administrative officer of the Department, the 
State Commissioner of Education is vested with broad 
powers including the “supervision of all schools of the 
state receiving support or aid from state appropriations” 
and the enforcement of “all rules prescribed by the state 
board.” N.J.S.A. 18A:4-23. The Commissioner is author­
ized to “inquire into and ascertain the thoroughness and 
efficiency of operation of any of the schools of the public 
school system of the state” (N.J.S.A. 18A:4-24), is di­
rected to instruct county superintendents and superin­
tendents of schools as to “the performance of their duties, 
the conduct of the schools and the construction and fur­
nishing of schoolhouses” (N.J.S.A. 18A:4-29), and is em­
powered to hear and determine “all controversies and dis­
putes” arising under the school laws or under the rules 
of the State Board or the Commissioner. N.J.SA. 18A:6-9.

We have from time to time been called upon to reaffirm 
the breadth of the Commissioner’s powers under the State 
Constitution and the implementing legislation. Thus in 
Lab a, supra, 23 N.J. 364, we held that the Commissioner’s 
“primary responsibility is to make certain that the terms 
and policies of the School Laws are being' faithfully ef­
fectuated” (23 N.J. at 382) and he is empowered to remand 
controversies and disputes “for further inquiry” at the 
local board level when such course appears appropriate. 
23 N.J. at 383. In Masiello, supra, 25 N.J. 590, we rejected 
a narrow interpretation by the Commissioner as to his 
powers on review of determinations by the State Board of 
Examiners and held that his responsibilities entailed in-

Appendix C



38a

dependent factual findings and independent interpreta­
tions of State Board rules. 25 N.J. at 606-07.

In East Brunswick, supra, 48 N.J. 94, the voters twice 
rejected the Township Board of Education’s school budget 
and the Township Council thereupon cut the budget. The 
Board filed a petition with the Commissioner of Educa­
tion and we were asked to decide whether the Commis­
sioner had power to determine the controversy between 
the Board and the Council and power to order restoration 
of the cut in the budget. We found that he did, pointing 
out that since as early as 1846 the Legislature had charged 
the State Commissioner with the duty of obtaining faith­
ful execution of the school laws and that at no time had 
his “comprehensive statutory responsibility” for deciding 
all controversies or disputes under the school laws or the 
State Board’s regulations ever been “withdrawn or nar­
rowed.” 48 N.J. at 101. Referring to the constitutional 
mandate for the maintenance and support of a thorough 
and efficient school system (art. 8, sec. 4, para. 1), we 
noted that the Legislature had directed the local school 
districts to provide “ suitable school facilities and accom­
modations” (R.8. 18:11-1; N.J.8.A. 18A:33-l, 2) and had 
vested the State supervisory agencies “with far reaching 
powers and duties designed to insure that the facilities 
and accommodations are being provided and that the con­
stitutional mandate is being discharged.” 48 N.J. at 103-04. 
We held that where the Commissioner finds that the budget 
fixed by the local governing body is insufficient to satisfy 
educational requirements and standards he should direct 
local corrective action or fix the budget “on his own.” 
48 N.J. at 107. See also Bd. of Ed. of Elisabeth v. City 
Coun. of Elisabeth, supra, 55 N.J. 501.

The history and vigor of our State’s policy in favor of 
a thorough and efficient public school system are matched

Appendix C



Appendix C

in its policy against racial discrimination and segregation 
in the public schools. Since 1881 there has been explicit 
legislation declaring it unlawful to exclude a child from 
any public school because of his race (L. 1881, c. 149; 
N.J.S.A. 18A:38-5.1), and indirect as well as direct efforts 
to circumvent the legislation have been stricken judicially. 
See Pierce v. Union District School Trustees, 46 N.J.L. 76 
(Sup.Ct. 1884), aff’d, 47 N.J.L. 348 (E . & A. 1885); Raison 
v. Bd. of Education, Berkeley, 103 N.J.L. 547 (Sup.Ct. 
1927) ; Patterson v. Board of Education, 11 N.J. Misc. 179 
(Sup.Ct. 1933), aff’d, 112 N.J.L. 99 (E. & A. 1934); Hedge­
peth v. Board of Education of Trenton, 131 N.J.L. 153 
(Sup.Ct. 1944). In 1947 the delegates to the Constitutional 
Convention took pains to provide, not only in general terms 
that no person shall be denied any civil right, but also in 
specific terms that no person shall be segregated in the 
public schools because of his “ religious principles, race, 
color, ancestry or national origin.” Art. 1, para. 5. Im­
plementing legislation now provides that persons shall have 
the opportunity to obtain “all the accommodations, ad­
vantages, facilities, and privileges of any place of public 
accommodation,” including any public school, “without dis­
crimination because of race, creed, color, national origin, 
ancestry” etc. N.J.S.A. 10:5-4, 5(1); see Blumrosen, “Anti- 
discrimination Laws in Action in New Jersey: A LawT- 
Sociology Study,” 19 Rutgers L.Rev. 189, 257-258 (1965).

In Booker v. Board of Education, Plainfield, supra, 45 
N.J. 161, we sympathetically applied our constitutional and 
statutory policies towards the elimination of racial segre­
gation or imbalance. Although there was no official policy 
of segregation there was a concentration of black students 
in particular schools as the result of what the Commis­
sioner described as “ ‘a constellation of socio-economic fac-



40a

tors.’ ” 45 N.J. at 166. The Commissioner found that this 
racial concentration or imbalance was educationally un­
desirable and upheld a corrective plan which satisfied his 
then stated requirement for the elimination of schools 
which were “ ‘completely or almost entirely Negro.’ ” We 
held that the Commissioner’s requirement was insufficient 
and that his proper goal was the broader one of “a rea­
sonable plan” for the entire school system “achieving the 
greatest dispersal consistent with sound educational values 
and procedures.” 45 N.J. at 180.

When the Supreme Court in Brown v. Board of Educa­
tion of Topeka, 374 U.S. 483, 98 L.Ed. 873 (1954), struck 
down segregated schools, it recognized that they generate 
a feeling of racial inferiority and result in a denial of 
equal educational opportunities to the Negro children who 
must attend them. However, as we said in Booker, while 
such feeling and denial may appear in intensified form 
when segregation represents official policy, “they also ap­
pear when segregation in fact, though not official policy, 
results from long standing housing and economic discrim­
ination and the rigid application of neighborhood school 
districting.” 45 N.J. at 168. Brown itself did not deal 
with the latter or de facto type of segregation and the 
very recent Supreme Court decisions in sweeping fur­
therance of Brown may fairly be viewed as confined to 
situations where there had been de jure segregation through 
dual public school systems. See Swann v. Charlotte Meck­
lenburg Bd. of Ed.,------U.S.------- , 28 L.Ed.2d 554 (1971);
Davis v. Board of School Comrnrs., ——• U.S. ------, 28
L.Ed.2d 577 (1971) ; McDaniel v. Barresi, ------  U.S. ------ ,
28 L.Ed.2d 582 (1971); North Carolina Bd. of Ed. v. Swann, 

- U.S. , 28 L.Ed.2d 586 (1971). But in Booker we 
did cite several lower federal court decisions which had

Appendix C



41a

taken the position that in the circumstances presented to 
them the continuance of de facto segregation in the local 
public schools would violate the federal constitution. 45 
N.J. at 169-70. See United States v. Jefferson County 
Board of Education, 372 F.2d 836, 873-76 (5 Gir. 1966), 
s.c., 380 F.2d 385 (5 Gir.), cert, denied, 389 U.S. 840, 19 
L.Ed.2d 103 (1967); Hobson v. Hansen, 269 F.Supp. 401, 
503-511 {D.D.C. 1967), aff’d, 408 F.2d 175 (D.O.Cir. 1969); 
cf. Davis v. School District of Pontiac, Inc., 309 F.Supp. 
734 (E.D. Mich. 1970), aff’d ,------F.2d -------  (6 Gir. 1971).

In Lee v. Nyquist, 318 F.Supp. 710 (W.D. N.Y. 1970), 
the New York Commissioner of Education had undertaken 
broad steps towards elimination of de facto segregation 
in the public schools. The New York Legislature sought 
to curb these by enacting a statute which prohibited the 
implementation of plans designed to alleviate racial im­
balance in the schools except with the approval of “a local 
elected board.” 318 F.Supp. at 718. The three-judge dis­
trict court struck this statute as invidious and unconstitu­
tional discrimination. In the course of his opinion, Judge 
Hays pointed out that although there may be no general 
duty under the federal constitution to undo de facto segre­
gation, “it is by now well documented and widely recog­
nized by educational authorities that the elimination of 
racial isolation in the schools promotes the attainment of 
equal educational opportunity and is beneficial to all stu­
dents, both black and white” (318 F.Supp. at 714) ■ and 
he approvingly quoted the following from a recent policy 
statement by the Regents of the University of the State 
of New York:

“ [T]he elimination of racial segregation in the 
schools can enhance the academic achievement of non­
white children while maintaining achievement of white

Appendix C



42a

children and can effect positive changes in interracial 
understanding for all children. The latter consideration 
is paramount. If children of different races and eco­
nomic and social groups have no opportunity to know 
each other and to live together in school, they cannot be 
expected to gain the understanding and mutual respect 
necessary for the cohesion of our society. The stability 
of our social order depends, in large measure, on the 
understanding and respect which is derived from a 
common educational experience among diverse racial, 
social, and economic groups—integrated education. The 
attainment of integrated education is dependent upon 
the elimination of racial segregation in the schools.” 
318 F.Supp. at 714.

The judgment in Lee v. Nyquist was summarily affirmed by 
the Supreme Court without opinion. 39 U.S.L.W. 3478 (May 
4, 1971).

Views along the lines found in Lee v. Nyquist were ex­
pressed by this Court in Booker. We there noted that 
whether or not the federal constitution compels action to 
eliminate or reduce de facto segregation in the public 
schools, it does not preclude such action by state school 
authorities in furtherance of state law and state educa­
tional policies. See Morean v. Bd. of Ed. of Montclair, supra, 
42 N.J. at 242-44; cf. Schults v. Bd. of Ed. of Teaneck, 
supra, 86 N.J. Super. 29. We pointed out in Booker that 
“in a society such as ours, it is not enough that the 3 R’s 
are being taught properly for there are other vital con­
siderations. The children must learn to respect and live 
with one another in multi-racial and multi-cultural commu­
nities and the earlier they do so the better. It is during 
their formative school years that firm foundations may be

Appendix C



43a

laid for good citizenship and broad participation in the 
mainstream of affairs. Recognizing this, leading educators 
stress the democratic and educational advantages of hetero­
geneous student populations, particularly when they are 
composed of a racial minority whose separation generates 
feelings of inferiority. It may well be, as has been sug­
gested, that when current attacks against housing and eco­
nomic discriminations bear fruition, strict neighborhood 
school districting will present no problem. Rut in the mean­
time the states may not justly deprive the oncoming genera­
tion of the educational advantages which are its due, and 
indeed, as a nation, we cannot afford standing by.” 45 N.J. 
at 170-71.

It is true that Booker dealt with a community which was 
wholly contained within a single district fixed by municipal 
lines whereas here the community involves two districts. 
When dealing with de jure segregation the crossing of dis­
trict lines has of course presented no barrier whatever. In 
Haney v. County Board of Education of Sevier County, 
Ark., 410 F2d  920 (8 Cir. 1969), s.c., 429 F.2d 364 (8 Cir. 
1970), the court of appeals flatly rejected a district court’s 
notion that consolidation to eliminate segregation in the 
public schools may not be achieved without the voter ap­
proval contemplated by state law. In the course of his 
opinion, Judge Lay noted that “state political subdivisions 
have long ago lost their mastery over the more desired ef­
fect of protecting the equal rights of all citizens” (410 F 2d 
at 924); he pointed out that political subdivisions of the 
state are “mere lines of convenience for exercising divided 
governmental responsibilities” and “cannot serve to deny 
federal rights” (410 F 2d at 925); he stressed that equal 
protection rights do not depend on the votes of the majority

Appendix C



44a

(410 F.2d at 925); and in response to those who still persist 
in their opposition to integration, he had this to say:

Separatism of either white or black children in pub­
lic schools thrives only upon continued mistrust of one 
race by another. It reflects a continuum of the falla­
cious “separate but equal” doctrine, which the law now 
acknowledges serves only as a sleeping sickness, 
whether it be engendered by the white or black. Sep­
aratism is just as offensive to the law when fostered 
by the Negro community as when the white community 
encourages it. Perpetuation of a bi-racial school system 
moves only toward further intolerances and misunder­
standings. The law can never afford to bend in this 
direction again. The Constitution of the United States 
recognizes that every individual, white or black, is con­
sidered equal before the law. 410 F.2d at 926.

As the Supreme Court pointed out in Reynolds v. Sims, 
377 U.S. 533, 12 L.Ed.2d 506, 535 (1964), political subdivi­
sions of the states whether they be “counties, cities or what­
ever” are not “sovereign entities” and may readily be 
bridged when necessary to vindicate federal constitutional 
rights and policies. See Gomillion v. Lightfoot, 364 U.S. 
339, 347, 5 L.Ed.2d 110, 116 (1960); United States v. State 
of Texas, 321 F. Supp. 1043, 1050-58 (E.D. Texas 1970); 
cf. Jackman, et al. v. Bodine, et at., 55 N.J. 371 (1970). It 
seems clear to us that, similarly, governmental subdivisions 
of the state may readily be bridged when necessary to vindi­
cate state constitutional rights and policies. This does not 
entail any general departure from the historic home rule 
principles and practices in our State in the field of education 
or elsewhere; but it does entail suitable measures of power 
in our State authorities for fulfillment of the educational

Appendix C



45a

and racial policies embodied in our State Constitution and 
in its implementing legislation. Surely if those policies and 
the views firmly expressed by this Court in Booker (45 
N.J. 161) and now reaffirmed are to be at all meaningful, 
the State Commissioner must have power to cross district 
lines to avoid “segregation in fact” (Booker, 45 N.J. at 168), 
at least where, as here, there are no impraeticalities and 
the concern is not with multiple communities but with a 
single community without visible or factually significant 
internal boundary separations.

In addition to the broad general grants of supervisory 
powers to the Commissioner, typified by statutes such as 
N.J.8.A. 18A:4-23 and N.J.S.A. 18A:6-9, there are legisla­
tive enactments which specifically call for crossing of dis­
trict lines. See N.J.8.A. 18A:38-8 et seq.; Blumrosen, supra, 
19 Rutgers L.Rev. at 266-69. Among these are the provi­
sions which relate explicitly to sending-receiving situations 
such as the one now in existence between Morris Township 
and Morristown; as we have already noted, that relationship 
under which the Township sends Township students to 
Morristown High School has, apart from a two-year inter­
ruption in 1958 and 1959, continued for over a hundred 
years. N.J.S.A. 18A:38-11 provides that a board of educa­
tion in a district lacking high school facilities shall desig­
nate a high school outside its district for attendance by its 
high school students; and N.J.S.A. 18A:38-13 provides, in 
pertinent part, that no such designation “shall be changed or 
withdrawn” except for “good and sufficient reason upon ap­
plication made to and approved by the commissioner.”

Antecedents of N.J.8.A. 18A:38-11 and 13 were in force 
before the Legislature adopted L. 1953, c. 273—now N.J. 
S.A. 18A:38-20 et seq. That statute provides that when a 
board of education of a receiving district is furnishing high

Appendix C



46a

school education to students from a sending district and 
additional facilities are required, the receiving district may, 
as a condition to providing the additional facilites, enter 
into a contract for a term not exceeding ten years under 
which the receiving district agrees to provide the educa­
tion and the sending district agrees not to withdraw its 
students except as provided in paragraph two of the statute. 
N.J.8.A. 18A:38-20. That paragraph sets forth that any 
receiving district may apply to the Commissioner for con­
sent to terminate the contract on the ground that it is no 
longer able to provide the necessary facilities, and any 
sending district may apply to the Commissioner for per­
mission to withdraw its students and provide its own high 
school facilities on the ground that the receiving district 
is not providing suitable facilities or that the receiving 
district will not be seriously affected educationally or fi­
nancially by the withdrawal. N.J.S.A. 18A:38-21.

Apparently the 1953 enactment was intended to give ad­
ditional assurance to the receiving district furnishing addi­
tional facilities that it would not. be endangered during the 
ten-year contract period. But the enactment was not in any­
wise intended to repeal nor did it have the effect of repeal­
ing the preexisting statutes such as that now embodied in 
N.J.S.A. 18A:38-13. Thus when the 1962 contract expires 
or is terminated in accordance with its terms, the Town­
ship’s prior designation of Morristown High School con­
tinues in full effect until it is changed or withdrawn in 
strict accordance with N.J.S.A. 18A:38-13. That statute 
appeared in the 1937 Bevision as part of R.S. 18:14-7. At 
that time it made no specific reference to withdrawal but 
did provide that no change of designation could be made 
except for good and sufficient reason and subject to the ap­
proval of the Commissioner. In 1956 R.S. 18:14-7 was

Appendix C



47a

amended to provide that the designation shall not he 
“changed or withdrawn” unless good and sufficient reason 
exists for the change and subject to the approval of the 
Commissioner. L. 1956, c. 68. In the 1968 Revision of the 
Education Law (L. 1967, c, 271) the pertinent statutory- 
language was put into its current form which explicitly 
provides, as set forth earlier, that the designation shall not 
be “changed or withdrawn” except for “good and sufficient 
reason upon application made to and approved by the com­
missioner.” N.J.S.A. 18A:38-13.

Despite the cited broadening and sweep of the statutory 
terms, the Commissioner expressed the view that he had 
no power whatever under N.J.S.A. 18A:38-13 to prevent 
the withdrawal of the Morris Township students from the 
Morristown High School. He cited earlier administrative 
rulings in which his predecessors had taken the position 
that “ once a school district provides its own high school 
facilities” R.S. 18:14-7 is inapplicable. They in turn had 
relied on language in R.S. 18:14-7 to the effect that any 
district which “lacks or shall lack high school facilities” 
may designate a high school outside its district for its 
high school students. In the present statute (N.J.S.A. 
18A:38-11) the reference to “shall lack” is omitted and 
the provision now is that every district “which lacks high 
school facilities” shall designate a high school in another 
district for its high school students. Morris Township 
still comes within the literal terms of the statute but, 
more important, is our present disapproval of the ad­
ministrative holding that the unilateral determination by 
Morris Township to build its own high school (cf. N.J.S.A. 
18A :45-l) has the legal effect of nullifying the precise 
statutory requirement (N.J.S.A. 18A:38-13) under which 
ultimate withdrawal of its high school students from Mor­

Appendix C



48a

ristown High School may not be accomplished without a 
prior showing to the Commissioner of good and sufficient 
reason and express approval on his part.

Surely on examination of the statutory terms themselves 
there is nothing in N.J.S.A. 18A:38-13 to support the 
Commissioner’s restrictive construction. Nor have we 
found anything legislatively or judicially sustaining his 
suggestion that the history of the sending-receiving statute 
reveals “the total vulnerability of a receiving district upon 
the decision of a sending district to erect its own facilities 
and educate its pupils itself.” While the earlier admin­
istrative rulings had that effect, they simply constituted 
the narrowing of a broad legislative provision in a man­
ner comparable with other administrative self-limiting ap­
proaches which we have repeatedly rejected. Cf. Bd. of 
Ed., E. Brunswick Tp. v. Tp. Council, E. Brunswick, supra, 
48 N.J. 94; Booker v. Board of Education, Plainfield, supra, 
45 N.J. 161; In re Masiello, supra, 25 N.J. 590; Laba v. 
Newark Board of Education, supra, 23 N.J. 364. The 
Commissioner has been appropriately charged with high 
responsibilities in the educational field and if he is faith­
fully to discharge them in furtherance of the State’s en­
lightened policies he must have corresponding powers. The 
Legislature has here granted them in broad terms and it 
would disserve the interests of the State to permit their 
administrative narrowing which in effect represents not 
only a disavowal of power but also a disavowal of respon­
sibility.

In view of all of the foregoing, it is evident that the 
Commissioner erred in dismissing, for lack of power un­
der N.J.S.A. 18A:38-13, the appellants’ petition and cross­
petition that he take suitable steps towards preventing 
Morris Township from withdrawing its students from Mor­

Appendix C



49a

ristown High School. We come now to consideration of 
his dismissal of their further petition that he take suitable 
steps towards effectuating a merger of the Morris Town­
ship and Morristown school systems. Here again the dis­
missal was rested on lack of power, the Commissioner 
having concluded that the State constitutional provisions 
(art. 1, para. 5; art. 8, sec. 4, para. 1) and his comprehen­
sive general statutory powers were insufficient to enable 
him to deal with the situation. See N.J.S.A. 18A:4-22, 23, 
24, 25, 29; N.J.S.A. 18A  :6-9; N.J.S.A. 18A :55-2; cf. N.J.S.A. 
18A.-4-10, 15, 16; N.J.S.A. 18A:45-1.

In reaching his conclusion the Commissioner stressed 
that while the Legislature had made specific provision for 
the merger of local districts into regional districts with 
voter approval {N.J.S.A. 18A:13-34), it had not made 
specific provision for any “alternative method.” He ex­
pressed the viewr that the legislative grant to him of “broad 
supervisory powers” did not enable him to act without 
the stated requirements such as voter approval though 
this approach may be contrasted wdth East Brunswick, 
supra, 48 N.J. 94, where we recently upheld the Commis­
sioner’s power to reinstate a local school budget rejected 
by the local voters. For present purposes we need not 
pursue the issue in its broader aspects for the situation 
here is indeed a specially compelling one and in traditional 
judicial fashion our holding may be confined to it. As 
has already been pointed out, here we are realistically 
confronted not with multiple communities but with a single 
community having no visible or factually significant inter­
nal boundary separations, and with a record which over­
whelmingly points educationally towards a single regional 
district rather than separate local districts.

Appendix C



50 a

The projections leave little room for doubt as to the 
unfortunate future if suitable action is not taken in timely 
fashion. The Commissioner explicitly referred to the grow­
ing racial imbalance between the Town and the Township 
and to its long-range harmful effects on the school systems 
of both; and he recognized that unless forestalled there 
would be another urban-suburb an split between black and 
white students. Unlike other areas in the State, the split 
can readily be avoided without any practical upheavals; 
indeed the record indicates not only that merger would 
be entirely “reasonable, feasible and workable” (Swann v.
Charlotte-Mecklenburg Bd. of Ed., supra, ------ U.S. at
------, 28 L.Ed.2d at 575) but also that it would not signif­
icantly involve increased bussing or increased expendi­
tures since most of the schools within the Town and the 
Township are located near their boundary line. So far 
as the educational advantages of merger are concerned, 
the testimony most persuasively indicates that they will 
redound to the benefit of the students from the Township 
as well as the Town; such minor dissent as appears in 
the testimony is in flat conflict with the educational views 
firmly held by the Commissioner and with the judicial 
views expressed by this Court in Booker (45 N.J. 161).

In the course of his decision, the Commissioner recog­
nized that, as a matter of State policy and apart from 
federal dictates, there is an “obligation to take affirmative 
steps to eliminate racial imbalance, regardless of its 
causes.” Citing our constitutional provisions for a thor­
ough and efficient school system (art. 8, sec. 4, para. 1) and 
against segregation in the schools (art. 1, para. 5), he 
noted: “it may well be that, given the racial disparity 
betwnen the school populations in Morristown and Morris 
Township and given the disparity in socio-economic make­

Appendix C



51a

up of the two communities and the resultant difference in 
capacity to provide quality education programs, the Legis­
lature has not fulfilled its constitutional obligation to pro­
vide for a thorough and efficient system of public schools.” 
But it seems to us that rather than suggesting an intoler­
able legislative default, he could and should more rea­
sonably and suitably have found, as we did in Booker, 
supra, 45 N.J. at 173-81, faithful legislative fulfillment 
of the constitutional mandate in the many broad imple­
menting enactments delegating comprehensive powers to 
the Commissioner.

In Booker we held that the Commissioner had the re­
sponsibility and power of correcting de facto segregation 
or imbalance which is frustrating our State constitutional 
goals; we pointed out that where the Commissioner deter­
mines that the local officials are not taking reasonably 
feasible steps towards the adoption of a suitable desegrega­
tion plan in fulfillment of the State’s policies, he may either 
call for a further plan by the local officials or “prescribe a 
plan of his own.” 45 N.J. at 178. There was no specific 
statutory language to that effect but we found sufficient 
legislative authority in the various general statutes which 
have been adopted by the Legislature from time to time and 
are now embodied in the 1968 Revision of the Education 
Law (L . 1967, c. 271). In particular, we referred to the Com­
missioner’s long standing and comprehensive power under 
N.J.S.A. 18A:6-9, pertinent here, to decide all controversies 
under the school laws or under the rules of the State Board 
of Education or the Commissioner (45 N.J. at 175), and we 
cited Blumrosen, supra, 19 Rutgers L.Rev. at 261 where 
many other pertinent powers of the Commissioner are 
enumerated. These include, as set forth earlier in this 
opinion, many broad supervisory powers designed to enable 
him, with the approval of the State Board of Education, to

Appendix C



52a

take necessary and appropriate steps for fulfillment of the 
State’s educational and desegregation policies in the public 
schools. Booker, supra, 45 N.J. at 173-81; N.J.8.A. 18A:4- 
22, 23, 24, 25, 29.

The Commissioner has been expressly vested with power 
to withhold State aid from any school district which fails 
“to obey the law or the rules or directions of the state 
board or the commissioner.” NJ.8.A. 18A:55-2; cf. N.J. 
S.A. 18A-.58-16. Similarly he has been expressly vested 
with power to withhold State aid from any school district 
which fails to provide “suitable educational facilities” in­
cluding proper buildings and equipment, convenience of 
access and courses of study. N.J.S.A. 18A:33-1, 2; cf. 
N.J.8.A. 18A :11-1 On a broad interpretation, schools with 
feasibly correctable racial imbalances might well currently 
be viewed as not affording suitable educational facilities 
within the meaning of the statutory language. Cf. Blum- 
rosen, supra, 19 Rutgers L.Rev. at 259 n. 155. In any event, 
it may be noted that the Commissioner acted with unusual 
hesitancy when he merely recommended the study of region­
alization in which the Township Board declined to par­
ticipate; he could readily have directed its participation 
with the ample strength of an arsenal of powers including, 
inter alia, the power to withhold State aid (N.J.8.A. 
18A:55-2) and the power to withhold approval of school 
construction. N.J.S.A. 18A:45-1; N.J.8.A. 18A:18-2.

The Commissioner’s criticism of the Township Board’s 
conduct in connection with the non-binding referendum was 
well taken. Apart from whether Board members had the 
right to seek a non-binding referendum at all (compare 
Botkin v. Westwood, supra, 52 N.J. Super, 416 with Gamrin 
v. Mayor and Council of Englewood, 76 N.J. Super. 555 
(Law Div. 1962)) they clearly had no right to pledge them-

Appendix C



53a

selves in advance to abandon their individual affirmative 
views in favor of the majority negative vote. Cf. Outturn 
v. Bd. of Education, of Tp. of North Bergen, 15 N.J. 285 
(1954). The vote was taken without the benefit of a suitable 
regionalization study on the part of the Township and 
without full and fair presentation to the voters of material 
considerations such as projected capital cost savings to 
Township taxpayers, etc. It has been suggested that it was 
motivated by constitutionally impermissible racial opposi­
tion to merger (cf. Lee v. Nyquist, supra, 318 F. Supp. 710; 
West Morris Regional Board of Education v. Sills, 
.----- - N.J.------  (1971)) but we pass that by since the Com­
missioner made no finding to that effect and his powers were 
of course in nowise dependent on any such finding.

In the light of all that has been said earlier in this 
opinion, we now find that the Commissioner erred not only 
in the dismissal of the appellants’ petition and cross­
petition insofar as they related to withdrawal of Township 
students from Morristown High School but also insofar 
as they related to merger of the Morris Township and 
Morristown school systems. The Commissioner is ade­
quately empowered to entertain such further proceedings 
pursuant to the petition and cross-petition as he finds 
appropriate and to grant such prayers therein as he con­
siders warranted including (1) direction for continuance 
of the sending-receiving relationship after the expiration 
of the present contract and (2) direction that the Boards 
of the Township and Town proceed with suitable steps 
towards regionalization, reserving, however, supervisory 
jurisdiction to the Commissioner with full power to direct 
a merger on his own if he finds such course ultimately 
necessary for fulfillment of the State’s educatoinal and 
desegregation policies in the public schools.

Appendix C

Reversed.



54a

IN THE UNITED STATES DISTRICT COURT 
F ob the  N oethers ' D istrict op A labama 

S outhern  D ivision 

C ivil  A ction N o. 65-396-S

A ppendix D

L inda S tout, et al.,
Plaintiffs,

U nited  S tates op A merica,

Plaintiff-Intervenor,
v.

J epferson C ou nty  B oard op E ducation , et al.,

Defendants,

B oard op E ducation of the Cit y  op P leasant Grove,

Defendant-Intervenor,

B oard of E ducation op th e  Cit y  op H omewood, et al.,

Defendants,

B oard of E ducation of the  Cit y  of Y estavia H ills , et al.,

Defendants,

B oard of E ducation of the C it y  op M idfield, et al.,

Defendants.

O R D E R
Pursuant to the mandate of the United States Court of 

Appeals for the Fifth Circuit of July 16, 1971, it is hereby



55a

Ordered, A djudged and D ecreed :

1. That the Boards of Education for Jefferson County, 
Pleasant Grove, Homewood, Vestavia Hills and Midfield 
be and they are hereby ordered to collaborate in pre­
paring a uniform desegregation plan in compliance with 
the requirements of Swann v. Charlotte-MecMenburg Board
of Education, ------ U.S. ------ (1971) (No. 281, decided
April 20, 1971). This plan shall encompass all of the sys­
tems included in Jefferson County at the time of the filing 
of the original suit. The plan shall graphically show the 
zones proposed along with projections of enrollments by 
race at all schools involved in the Jefferson County case. 
This plan shall be filed and served upon the parties no 
later than August 6, 1971. All parties shall submit ob­
jections, if any, by August 12, 1971.

2. The Boards of Education in paragraph 1 above shall 
take steps to insure compliance with the uniform provi­
sions of Singleton v. Jackson Municipal Separate School 
District, 419 F.2d 1211 (5th Cir., 1969). The plans filed 
pursuant to paragraph 1 above shall incorporate the re­
vised majority to minority provisions as required under 
Swann, supra.

3. On each September 30 and January 30 until the Court 
directs otherwise the Boards of Education in paragraph 1 
above are directed to file reports as required in United 
States v. Rinds County School Board, 433 F.2d 611, 618-19 
(5th Cir., 1970).

Done and Ordered this 22nd day of July, 1971.

S eybourn  H. L yn ne  
U nited  S tates D istrict J udge

Appendix D



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